Affirmed and Memorandum Opinion filed May 29, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00322-CR
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VU HOANG NGUYEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1004299
M E M O R A N D U M O P I N I O N
Vu Hoang Nguyen appeals from a murder conviction contending that the trial court abused its discretion denying his request for a mistrial after the State (1) asserted in opening statement that a witness who was unavailable to testify had identified him in a photo lineup; (2) stated that defense counsel was trying to Amislead the jury@ during cross-examination of the State=s key eyewitness; (3) asserted that a defense alibi witness had a gun and was present at the shooting; and (4) elicited testimony from a police officer that he provided a false name to police when he was arrested in California. We affirm.
Background
Shortly after 4 a.m. on October 15, 2004, the Houston Police Department received a 911 call reporting a shooting. Because the caller gave an incorrect address, it took emergency responders 30 minutes to reach the scene at an apartment at 10211 Sugar Branch in Houston, Texas.
Detective Todd Miller was called at 5:20 a.m. and went to the scene to investigate. Detective Miller spoke to two witnesses, Vu Van Tran and Van Bang Nguyen.[1] He also saw the decedent, Hung Nguyen, who had been shot repeatedly. No murder weapon was recovered.
Detective Miller interviewed Van Bang Nguyen, who told Detective Miller that he was in the apartment with Hung Nguyen and Vu Van Tran when four men arrived. The four men wanted to purchase cocaine from Hung Nguyen, a known cocaine dealer. One of the four was appellant, known locally as AJoker.@ Vu Bang Nguyen testified that Hung Nguyen looked at appellant and appellant responded, AWhat are you looking at?@ Van Bang Nguyen testified that appellant then grabbed a gun from one of the other three men who had entered the apartment with him and pointed it at Hung Nguyen. Hung Nguyen responded, ADo you dare to shoot me?@ Van Bang Nguyen testified that appellant then shot Hung Nguyen six times, killing him. During the altercation, one of the three men who accompanied appellant attempted to wrest the gun from appellant and was shot in the hand. Appellant and the other three men fled the scene.
Detective Miller noted that a trail of blood was found leading from the apartment and going down the stairs. Six .9 mm shell casings were recovered from the floor of the apartment, and six holes were noted in the wall. Five bullets also were recovered. The apartment showed no signs of a struggle or forced entry. Detective Miller put together a photo lineup with a picture of appellant; the two witnesses, Vu Van Tran and Van Bang Nguyen, picked appellant from among the photos and identified him as the shooter.
On March 22, 2005, appellant was arrested in Huntington Beach, California. Although appellant gave the police a false name, appellant=s identity eventually was determined and he was linked to a warrant put out by the Houston Police Department. Detective Miller went to California and interviewed appellant. Appellant thereafter was transferred to the custody of the Houston Police Department.
Appellant pleaded not guilty on November 14, 2006, and was found guilty by a jury on April 2, 2007, after a five-day trial. Appellant was sentenced to confinement for 30 years. Appellant timely filed this appeal.
Appellant assigns error based on three instances during trial involving assertions by the State, and one instance in which the State elicited inadmissible testimony. In each instance, appellant=s counsel objected; the objection was sustained; and the jury was instructed to disregard the objectionable statements and testimony. Appellant=s counsel also requested a mistrial after each instance, which the trial court denied. On appeal, appellant assails the trial court=s refusal to grant a mistrial.
Standard of Review
A mistrial is appropriate only for Ahighly prejudicial and incurable errors.@ Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). It is a mechanism to end a proceeding when the trial court faces prejudicial error that makes continuance wasteful and futile. Id. A trial court=s denial of a motion for mistrial is reviewed for abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood, 18 S.W.3d at 648. When an appellant is not contesting the trial court=s ruling on his objection, but rather the denial of a new trial, the denial should be upheld unless it falls outside the zone of reasonable disagreement. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); see also Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (denial of mistrial is reviewed for abuse of discretion when improper question is asked and objection is sustained and instruction is given to jury to disregard).
When the court has instructed the jury to disregard evidence or an improper statement, the jury is presumed to have followed the instruction. Hawkins, 135 S.W.3d at 77. In determining whether a new trial nonetheless is mandated despite the instruction to disregard, we look at the facts and circumstances of the case to see if the trial court=s instruction cured the presentation of objectionable matters before the jury. See id. (prosecutor=s improper statement of the law); Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999) (irrelevant testimony); Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990) (improper inference of prior wrongdoing); Gonzalez v. State, 685 S.W.2d 47, 49 (Tex. Crim. App. 1985) (question referencing improper testimony of previous charges that fell short of convictions); Austin v. State, 222 S.W.3d 801, 815 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d) (prejudicial evidence of decedent=s murder); Herrero v. State, 124 S.W.3d 827, 835 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (improper testimony admitted). AGenerally, a mistrial is only required when the improper evidence is >clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury.=@ Hinojosa, 4 S.W.3d at 253 (quoting Gonzalez, 685 S.W.2d at 48-49). AOnly in extreme circumstances, where the prejudice is incurable, will a mistrial be required.@ Hawkins, 135 S.W.3d at 77; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).
AIn analyzing whether the prejudicial event is so harmful that the case must be redone, we consider (1) the prejudicial effect; (2) the curative measures taken; and (3) the certainty of conviction absent the prejudicial event.@ Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see also Hawkins, 135 S.W.3d at 77 (adopting Mosley factors to evaluate whether the trial court abused its discretion in denying a mistrial for improper argument); Austin, 222 S.W.3d at 815 (applying the factors set forth in Mosley). In most cases, Aa prompt instruction to disregard will cure error associated with an improper question and answer.@ Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
Analysis
1. Reference to Vu Van Tran During Opening Statement
Appellant=s first issue contends that the trial court erred in denying a mistrial after the State asserted in opening statement that witness Vu Van Tran, who was unavailable to testify, had identified appellant in a photo lineup. Appellant contends this statement was improper because an eyewitness= out-of-court identification of a defendant is hearsay if the eyewitness is unavailable to testify at trial. See Tex. R. Evid. 801(e)(1)(C); Williams v. State, 531 S.W.2d 606, 611 (Tex. Crim. App. 1976); Jackson v. State, 846 S.W.2d 411, 414 (Tex. App.CHouston [14th Dist.] 1992, pet. denied).
The following dialogue took place at trial:
THE STATE: There were two witnesses that were there with Hung the night Hung died B Vu Tran and Bang Nguyen. They spoke with Detective Miller; and based on the information that they provided, he put together a photo array. In that photo array was a picture of this defendant. And Detective Miller will testify that both witnesses picked that defendant=s picture.
DEFENSE: Excuse me. You know, I=m going to object to that.
THE COURT: That=s sustained.
DEFENSE: And I ask that the jury be instructed to disregard.
THE COURT: The jury is instructed to disregard the last comment made by the prosecutor.
DEFENSE: And we move for a mistrial. That was clearly made B
THE COURT: Overruled.
Thus, it is clear appellant made a timely objection and received a favorable ruling, including an instruction for the jurors to disregard the prosecutor=s comment. Appellant contends the trial court nonetheless should have granted a mistrial.
As a threshold matter, it is debatable whether the prosecutor=s statement about Vu Van Tran=s out-of-court identification of appellant was improper. It is not error for the State to tell the jury during opening what she expects to prove at trial even if she does not subsequently do so. See Matamoros v. State, 901 S.W.2d 470, 475 (Tex. Crim. App. 1995).
Our sister court addressed this situation in a case in which the State=s opening statement included a claim that a watch was found in defendant=s car, but the State failed to put on any evidence of this fact at trial. Singleton v. State, 881 S.W.2d 207, 215 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). During deliberations, the jury asked for a copy of the opening statement concerning the watch. Id. The appellate court found no error and noted that the State is entitled to set out during opening argument what it intends to prove even if it fails to do so at trial. Id.
Additionally, an out-of-court identification is not hearsay when it is used to show how a defendant became the subject of the investigation. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Lillard v. State, 994 S.W.2d 747, 751 (Tex. App.CEastland 1999, pet. ref=d) (when offered to show why a warrant was issued, testimony of an unidentified informant, otherwise hearsay, is admissible). The statement here potentially related to the testimony given at trial by Officer Todd Miller that appellant became a person of interest based upon the accounts of two witnesses and the identification of the appellant in a photo lineup by these witnesses. Officer Miller=s trial testimony was admissible if it was not offered to prove the truth of the matter therein discussed B that appellant was the shooter B but was offered instead to show why appellant first became a suspect. See Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992); Lillard, 994 S.W.2d at 751. The statement during opening introduced no facts outside the record because it related to Officer Todd=s testimony concerning how appellant became a person of interest in the first place. Cf. Kerns v. State, 550 S.W.2d 91, 96 (Tex. Crim. App. 1977) (prosecutor=s jury argument may be reversible error when it introduces new, harmful facts that are outside the record).
Assuming that the statement was improper because it related to an out-of-court identification by an unavailable witness, we analyze it under Mosley and consider (1) the prejudicial effect of the event; (2) curative measures taken in response to the prejudicial event; and (3) the certainty of conviction absent the prejudicial event. Mosley, 983 S.W.2d at 259; see also Austin 222 S.W.3d at 815.
We first consider the prejudicial effect. Any such effect is attenuated when the information otherwise is properly admissible. See Banks v. State, 643 S.W.2d 129, 133 (Tex. Crim. App. 1982) (Aopening remarks about evidence which was thereafter properly admitted did not constitute error@); Hullaby v. State, 911 S.W.2d 921, 928 (Tex. App.CFort Worth 1995, pet. ref=d) (Aonce such evidence is presented to the jury, it removes any error there may have been in the making of the opening statement@); see also Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002) (error in admission of evidence is harmless if cumulative of evidence properly admitted elsewhere). In this case, appellant challenges the reference made in the State=s opening argument to a second witness identifying appellant in a lineup. Any prejudice from this statement is attenuated at best because the same information came to the jury via Officer Miller=s testimony as he described how appellant became a suspect in the case. He testified without objection at trial concerning the development of the appellant as a suspect and the identification of the suspect by both witnesses: AI presented the photo array, first, to Vu Tran after giving him some admonishments. And then, secondly, I presented it to Bang Nguyen after giving him the same admonishments.@ The first Mosley element weighs in favor of the State.
Turning to curative measures, the trial court sustained appellant=s objection to the State=s opening argument and instructed the jury to disregard it. The trial court gave an immediate and appropriate instruction to the jury to disregard the prosecutor=s statement that a second individual had identified appellant. Such an instruction is presumed to be effective; the burden of rebutting this presumption lies with the appellant, who must come forward with some evidence that the jury disregarded the instruction. Hinojosa, 4 S.W.3d at 253; Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988) (an instruction corrects the admission of improper evidence except in extreme situations where such admittance Ais clearly calculated to inflame the minds of the jury@); see also Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). This is not an extreme situation; there is no indication that the jury disregarded the instruction; and the second Mosley element therefore weighs in favor of the State.
We next address the certainty of conviction absent the prejudicial event. Mosley, 983 S.W.2d at 259. In this case, no weapon was recovered. There was no DNA, fingerprint, or other forensic evidence. There was no confession. The State=s case against appellant relied heavily on the testimony of one witness, Van Bang Nguyen. His trial testimony was inconsistent in certain respects with statements he made at the scene of the crime. At the scene, Van Bang Nguyen told police he had been asleep when the group of men including appellant entered the apartment, and that he had hidden in his room when he heard the gun shots. At trial, Van Bang Nguyen testified that he came into the living room as the four men entered; that he was present in the room during the shooting; and that he saw appellant=s companion get shot in the hand. Van Bang Nguyen=s statement on the evening of the shooting also contained fewer details than the testimony given at trial B omitting information such as the nickname of the alleged shooter, AJoker,@ and the fact that an individual had tried to intervene and had received a gunshot wound to the hand.
At the time of trial, Van Bang Nguyen had three prior felony convictions for aggravated robbery. The appellant proffered evidence that Van Bang Nguyen was Arecruited@ to be a witness by the brother of the deceased. The appellant also put on three witnesses who supported appellant=s alibi that he was elsewhere on the night of the murder. That alibi testimony was challenged by the State, which relied on evidence concerning the use of appellant=s cell phone as determined by the location of Apings@ off cell phone towers in the vicinity of the murder. Circumstantial evidence showed that appellant largely ceased using his cell phone after the shooting, and that he could not be located by police for questioning. The State also put on evidence of appellant=s relocation to California immediately after the shooting, and appellant=s long absence even though the bar he owned was left in the hands of two young friends who had Arun it into the ground@ in his absence. The jury was given an eyewitness account. The jury was allowed to weigh Van Bang Nguyen=s credibility. The jury also was presented with circumstantial evidence upon which it could base its conviction. Circumstantial evidence is as probative as direct evidence, and sufficient in itself in establishing a party=s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
After weighing the Mosley factors, we determine that the trial court acted within its discretion in denying a mistrial. It cannot be said on this record that the jury is unlikely to have convicted appellant without the challenged statement during opening. When, as here, an instruction is given, we presume that the jury followed the instruction and made its determination of guilt based on the evidence before it. Hinojosa, 4 S.W.3d at 253. ATo constitute reversible error, the prosecutor=s comment in his opening statement has to be so egregious that its prejudicial effect cannot be cured by an instruction to disregard.@ See Lillard, 994 S.W.2d at 751. The State=s comment was not so egregious that the trial court abused its discretion in denying a mistrial.
Appellant=s first issue is overruled.
2. Statement that Defense Counsel was Trying to AMislead the Jury@
Appellant=s second issue contends that the trial court erred in denying a mistrial when the State asserted that defense counsel was trying to Amislead the jury@ during cross-examination of the prosecutor=s key eyewitness. This statement was made after defense counsel referenced Van Bang Nguyen=s apparent ability to understand and respond in English to questions in English from the State, and his apparent difficulty in understanding and responding in English to defense counsel=s questions in English. Defense counsel ultimately requested a translator to facilitate the questioning of Van Bang Nguyen. Thereafter, the following exchange took place at trial and in the presence of the jury:
DEFENSE: Isn=t it the truth that you answered her English language questions and you answered them in English?
WITNESS: Yes, I recall; but my English is not very good.
DEFENSE: Well, I can tell that. But my question really is: You didn=t ask for or we didn=t have a translator until I started asking you questions, isn=t that true?
THE STATE: Objection your honor. Counsel is attempting to B
THE COURT: Overruled
THE STATE: B mislead this jury
THE COURT: Overruled
DEFENSE: Wait a minute, I object to that statement.
THE COURT: Overruled. Have a seat.
. . .
DEFENSE: I don=t want to let that statement that I=m trying to mislead the jury to pass, your honor. I objected to that. I ask that the jury be instructed to disregard it.
THE COURT: Your objection was sustained, and the jury is instructed to disregard the last comment made by the prosecutor.
DEFENSE: And I respectfully move for a mistrial because the district attorney is accusing me of trying to mislead the jury.
THE COURT: Overruled.
Once again appellant made an objection that was sustained with a corresponding instruction to disregard. We review the trial court=s decision to deny a mistrial based on this episode for abuse of discretion. Hawkins, 135 S.W.3d at 77.
Turning to the first Mosley factor regarding prejudicial effect, appellant contends that the State=s comment was an impermissible strike at the appellant over counsel=s shoulder. Appellant compares the comment to an exchange described in Fuentes v. State, 664 S.W.2d 333 (Tex. Crim. App. 1984). In Fuentes, the prosecutor objected to defense counsel=s assertion that the defendant had been held for 15 days Abefore they delivered him to the Dallas County Sheriff, who then put him in Parkland Hospital for treatment to recover from the beatings that [police] gave him.@ Id. at 335. The prosecutor responded, AOh, Judge, we object to that, he is in bad faith like usual and we object to it. That is a bunch of garbage and he knows it.@ Id. The trial court sustained the prosecutor=s objection and instructed the jury to disregard defense counsel=s comments. Id. On appeal, the defendant complained of the prosecutor=s statement; the appellate court agreed and granted a new trial because the Aprosecutor=s comment was manifestly improper, harmful, and prejudicial, thus constituting reversible error.@ Id. at 337.
In the case before us, the challenged statement was as follows: AObjection your honor. Counsel is attempting to . . . mislead the jury.@[2] This statement is substantially less severe than the comment made in Fuentes. The statement here did not describe defense counsel as habitually engaging in dishonest trial tactics and did not describe defense counsel=s statements as Aa bunch of garbage.@
During the colloquy following the State=s objection, appellant=s counsel acknowledged he erroneously had said that Van Bang Nguyen asked for a translator; in fact, defense counsel had requested the translator. When the defense makes an erroneous statement, the State is entitled to have it corrected. See Cole v. State, 194 S.W.3d 538, 547 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d) (ARather, the comment, albeit inappropriately stated, was in response to the prosecutor=s evident belief that defense counsel was misleading the jury on the appropriate sentencing range@); cf. Casas v. Paradez, No. 04-06-00417-CV, 2007 WL 2479602, at *7 (Tex. App.CSan Antonio Sept. 05, 2007, no pet.) (one element to consider in determining whether to reverse a conviction based on an improper jury argument is whether the argument was invited or provoked). Appellant=s counsel stated during a side-bar discussion: AI requested [the translator] once [Van Bang Nguyen] said he couldn=t answer my question . . . I have said that. It is true.@ The trial court then asked defense counsel to Aclarify that for the jury@ to which appellant=s counsel responded Asure.@ The effect of the prosecutor=s statement was minimal under the circumstances, and the first Mosley factor weighs in favor of the State.
The second Mosley factor also favors the State because of the curative measure taken in this case. In contrast to Fuentes, where the trial court sustained the prosecution=s objection to defense counsel=s question, the trial court here sustained appellant=s objection to the prosecutor=s statement and instructed the jury to disregard that statement. Because the trial court instructed the jury not to consider this statement, this court presumes the jury based its decision only on the admissible evidence before it. See Hawkins, 135 S.W.3d at 77. The trial court in Fuentes did not entertain a defense motion to strike the comment because none was requested, and the jury therefore was free to consider that comment in its deliberations and decision. In this case, the trial court overruled the prosecution=s objection even before the statement was finished, doing so again when the State attempted to finish the statement. Unlike Fuentes, the trial court here also instructed the jury to disregard the prosecutor=s comment. See Hinojosa, 4 S.W.3d at 253. For these reasons, the second Mosley factor weighs in the State=s favor.
The third Mosley factor regarding certainty of conviction weighs in the State=s favor for the same reasons as those discussed in connection with appellant=s first issue. Absent the prosecutor=s single reference to Aattempting to . . . mislead the jury@ following an erroneous statement by appellant=s counsel, we cannot say the jury is unlikely to have convicted appellant.
Appellant=s second issue is overruled.
3. Reference to Sundeep Majumder as AThe Man with the Gun@
Appellant=s third issue contends that the trial court erred in denying a mistrial after the prosecution erroneously suggested that Sundeep Majumder, a defense alibi witness, had a gun and was present at the shooting. The following exchange took place:
THE STATE: Isn=t it true that on the night Hung Nguyen died, you were the man with the gun in that apartment?
WITNESS: No ma=am.
DEFENSE: You know, now I object to that. That=s bad faith. May we have the jury removed?
THE COURT: Let=s take the jury out, please.
(Jury leaves courtroom)
* * *
DEFENSE: And, of course, I=ve requested that instruction; but I=m afraid it=s not good enough to cure the harm. So, I=m going to move for a mistrial also.
THE COURT: I=ll do it really good. Overruled.
(Jury enters courtroom)
THE COURT: Be seated, please. All right. Members of the jury, when we broke there was a question that was asked of this witness by the prosecutor. I=m going to ask you to specifically disregard that question and disregard any evidence B not any evidence B disregard any inference that this witness was at all the gunman in any way in this case.
DEFENSE: And because the instruction, your Honor, with all due respect, doesn=t equal the harm that was done by that suggestion by the prosecutor, we respectfully move for a mistrial.
THE COURT: Overruled.
Once again appellant made an objection that was sustained with a corresponding instruction to disregard. See Hinojosa, 4 S.W.3d at 253. The inquiry focuses again on whether the trial court=s decision to deny a mistrial was an abuse of discretion. Hawkins, 135 S.W.3d at 77.
We begin by analyzing the prejudicial effect of the event. The State contends that this statement was a mistake based upon photos the State had in its file. According to the prosecution, Van Bang Nguyen thought he had recognized Sundeep Majumder from a photo as the man with the gun in the apartment. The State asked Sundeep Majumder if he was Athe man with the gun at the apartment@ based on this information from Van Bang Nguyen. As the question was being asked, the State was bringing Van Bang Nguyen to the courtroom in person to determine if he could identify Sundeep Majumder as having been at the shooting. Van Bang Nguyen was unable to identify Sundeep Majumder in the courtroom, and the State withdrew the question.
The State=s question did not prejudice appellant directly. If the question had any prejudicial effect, that effect was directed at one of appellant=s three alibi witnesses. Sundeep Majumder=s testimony tended to support an alibi for appellant by indicating that appellant was elsewhere at the time of the shooting. Sundeep Majumder was impeached by the testimony of another witness and his testimony was challenged using evidence regarding the location of appellant based upon usage of appellant=s cell phone on the evening of the shooting. This record provides no basis for concluding that the single, erroneous question to Sundeep Majumder affected the verdict in this case despite an instruction to disregard that question. See Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985) (asking an improper question is not reversible error unless it results in obvious harm to the accused). The effect of the event was minimal, and the first Mosley element weighs in favor of the State.
The second Mosley element also weighs in favor of the State. The trial court upheld the objection and gave a forceful instruction to the jury to disregard. Sundeep Majumder answered the question, and his negative answer did not incriminate him. In addition, the question was withdrawn before it could have any further impact. Cf. Turner v. State, 719 S.W.2d 190, 194 (Tex. Crim. App. 1986) (the fact that the witness did not answer an incriminating question was one factor that negated any harm caused by the erroneous question).
Asking an improper question, without more, seldom will mandate declaration of a mistrial B especially when a proper instruction cures the error. Hernandez, 805 S.W.2d at 414. As the Court of Criminal Appeals has stated:
[T]he error in asking an improper question generally may be cured or rendered harmless by the withdrawal of the question and an instruction to disregard except in extreme cases where it appears that the question was clearly calculated to inflame the minds of the jury and was of such character as to suggest the impossibility of withdrawing the impression produced on the jurors= minds . . . . In the instant case, the record does not reflect that the prosecutor asked the question in bad faith. The question was not so prejudicial to appellant as to render the court=s instruction to the jury insufficient to cure the error.
Carrillo v. State, 591 S.W.2d 876, 892 (Tex. Crim. App. 1979); see also Hinojosa, 4 S.W.3d at 253 (jury instruction cured reference to victim-impact testimony given in response to prosecutor=s question). The trial court acted within its discretion in finding that the State was acting in good faith, and that any prejudice was mitigated by withdrawal of the question and instructing the jury to disregard. The second Mosley element weighs in the State=s favor.
The third Mosley factor regarding certainty of conviction weighs in the State=s favor for the same reasons as discussed in connection with appellant=s first and second issues. It is unlikely that the State=s assertion that Sundeep Majumder had a gun was so damaging that it, and not the other evidence that challenged appellant=s alibi, caused the jury to convict appellant.
The trial court acted within its discretion to deny a mistrial. Appellant=s third issue is overruled.
4. Testimony that Appellant Gave a False Name to Police in California
Appellant=s fourth issue contends that the trial court erred in denying a mistrial after the prosecution elicited testimony that appellant provided a false name to police when he was arrested in California. This testimony followed a side-bar discussion about why a police officer would fly to California to interview a suspected murderer and not return with him to stand trial. The parties disagreed about what part of the narrative was relevant and admissible. The following exchange took place at trial:
THE STATE: So, Officer, who contacted you to tell you that Vu Nguyen was out in California?
DEFENSE: That=s not relevant.
THE COURT: Well, overruled. Just who.
WITNESS: The Huntington Beach Police Department.
THE STATE: And why did they contact you?
WITNESS: Because they had arrested a person who had provided a false name that was later identified to be the defendant in this case.
DEFENSE: I object.
THE COURTS: Your objection is sustained.
DEFENSE: And we move for a mistrial.
THE COURT: Overruled.
DEFENSE: May we have an instruction, your Honor? The only thing relevant is that he was arrested and he was brought back here.
THE COURT: Sustained.
THE STATE: Based on defense counsel=s testimony that he was arrested and brought back here B
DEFENSE: I=m not testifying, your Honor.
THE COURT: Your objection is B
DEFENSE: You just asked us to play nice. I=m trying to B
THE STATE: Oh, objection, Judge.
THE COURT: All right. Just ask a simple question. And try to just answer just the question, please.
Once again appellant made an objection that was sustained, and appellant=s counsel sought a corresponding instruction to disregard that was approved. We review the trial court=s denial of a mistrial for abuse of discretion. Hawkins, 135 S.W.3d at 77.
Appellant contends this testimony improperly injected evidence of an extraneous offense.[3] Appellant contends that this Atestimony was especially prejudicial because it suggested that [appellant] lacked credibility, that he knew he was wanted for murder, and that he was trying to avoid detection.@
At the time of the contested exchange, the jury did not know that appellant gave a false name when he was arrested by police in Huntington Beach, California. The trial court sustained the objection and instructed the jury to disregard it, and we once again apply the Mosley test.
We begin by analyzing the prejudicial effect of the event. It is doubtful whether the giving of a false name adds any significant prejudice to the information that the jury already possessed and was allowed to consider. Evidence regarding the arrest and extradition of appellant from California B following his abandonment of a business in Houston and sudden flight to California B already was before the jury. Evidence of having given a false name was at most cumulative of evidence that appellant fled to California because both circumstances pointed to a desire to avoid arrest. See Yost v. State, 222 S.W.3d 865, 875 (Tex. App.CHouston [14th Dist.] 2007, pet. denied) (giving a false identity and moving a distance away from a crime is evidence that supports an inference of avoiding arrest). Cumulative evidence provides no basis for reversal. See Frank v. State, 90 S.W.3d 771, 805-06 (Tex. App.CFort Worth 2002, no pet.) (because the complained-of testimony was mostly cumulative of other evidence introduced in the case, no harm attached); Mack v. State, 928 S.W.2d 219, 225 (Tex. App.CAustin 1996, pet. ref=d) (error is not reversible Aif other evidence at trial is admitted without objection and it proves the same fact or facts that the inadmissible evidence sought to prove@).
The second Mosley element also weighs in favor of the State. The trial court upheld the objection and instructed the jury to disregard the testimony. While the fact that appellant gave a false name when arrested in California became known to the jury, the jury was properly instructed to disregard this fact. Even if this testimony improperly introduced evidence of an extraneous offense, an instruction to the jury to disregard cured the harm from a non-responsive answer by a State witness. See Moody v. State, 827 S.W.2d 875, 890 (Tex. Crim. App. 1992) (AExcept in extreme cases, if the trial court sustains a timely objection and instructs the jury to disregard an improper response referring to an extraneous offense, the error is cured@); Fuller v. State, 827 S.W.2d 919, 926 (Tex. Crim. App. 1992) (police officer=s reference to defendant=s prior incarceration cured by jury instruction); Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (AEven where such prejudicial information is inadvertently placed before a jury, the general rule is still that an instruction by the trial judge to the jury to disregard such answer will be sufficient to cure any unresponsive answer@).
In the case before us, the State did not specifically solicit the information provided by Officer Miller, nor did the State repeat that information to its benefit. Given the presumption that any prejudice was cured by a proper ruling and instruction, the second Mosley factor weighs in favor of the State.
As for the third Mosely factor, appellant contends the Atestimony was especially prejudicial because it suggested that [appellant] lacked credibility, that he knew he was wanted for murder, and that he was trying to avoid detection.@ Appellant suggests that this evidence could have compelled a jury to find appellant guilty. But the appellant fails to note that evidence of flight already was before the jury, and it is unlikely that the false name added significantly to the facts already known to the jurors. The third Mosley factor weighs in favor of the State, and the trial court was within its discretion to deny the motion for a mistrial.
Appellant=s fourth issue is overruled.
Appellant=s fifth issue contends that the trial court erred in denying a mistrial under the doctrine of cumulative error. Appellant points to Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App. 1999), for the proposition that the cumulative effect of errors can warrant reversal. In Chamberlain, however, the court was looking at constitutional violations of due process and due course of law, and having found no errors, determined that non-errors collectively could not constitute cumulative error. Id. at 238. Here, the trial court did not commit error in its rulings on the objections, and it provided ample instruction to the jury to guide its deliberations and decision-making.
Because the trial court did not abuse its discretion on any individual ruling, we cannot find that the cumulative nature of its correct rulings warrants reversal.[4]
Appellant=s fifth issue is overruled
The trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Judgment rendered and Memorandum Opinion filed May 29, 2008.
Panel consists of Chief Justice Hedges, and Justices Fowler and Boyce.
Do not publish C Tex. R. App. P. 47.2(b).
[1] Appellant is not related to Van Bang Nguyen or the decedent, Hung Nguyen.
[2] The ellipsis signals the omission of the trial court=s ruling on the prosecutor=s objection BAoverruled@ B which occurred as the State and the trial court apparently were speaking simultaneously.
[3] On appeal, appellant contends that the testimony given by Officer Miller violated a motion in limine, but a motion in limine does not preserve specific grounds for an objection not reiterated in the trial court. See Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). Appellant also points to two cases for the proposition that introduction of extraneous wrongs constitutes reversible error mandating a new trial. Appellant=s reliance on these cases is misplaced. In Robinette v. State, 816 S.W.2d 817, 818 (Tex. App.CEastland 1991, no pet.), the court applied a harm analysis, holding: AWe cannot conclude beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.@ This is not the standard here. When the trial court upholds the defense objection and gives an instruction to disregard, the only possible error on appeal is the denial of a mistrial. Archie, 221 S.W.3d at 699-700; see also Hawkins, 135 S.W.3d at 77. Appellant also points to Stratham v. State, 683 S.W.2d 89 (Tex. App.CDallas 1984, no pet.). In Startham, the State attempted to cross-examine the defendant about alleged shoplifting at Target. Id. at 90. The defense objected, but the trial court overruled its objection. Id. Startham is inapplicable because the trial court erred in failing to sustain the objection and failed to instruct the jury to disregard. Here, the trial court did both.
[4] Chamberlain cites Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1988). In Stahl, the error constituted a combination of improper prosecutorial arguments and outbursts by the victim=s mother. Stahl, 749 S.W.2d at 828. This combination, coupled with blatant prosecutorial misconduct, was beyond the curative power of a jury instruction. Id. The court found that the outbursts should have been anticipated, were in part provoked by the prosecutor, and were referenced in improper arguments by the prosecutor. Id. at 829-30. These circumstances are not present here.